Online Communication: “Meet me online so we can talk in private for everyone to read.”
The use of electronic internet devices, such as computers, laptops, cell phones, and smartphones, has led to an explosion of readily available information. The web has become a bounty of data – plentiful facts, sports stats, and the latest teen bullshit can be accessed at the touch of a button, or the touch of a screen. The sheer amount of “things” can sometimes seem more like a virus outbreak than an explosion, or like a tidal wave decimating ordinary web surfers.
Our communications are more accessible than before. Social media has put the pillars of our private lives in a rush for all to see and read. The latest posts and status updates let everyone know where we’ve been, what we ate, what we’re thinking about the latest movie, and what we’re going to wear tomorrow – the list is as endless as our notes to the minute details of our existence minute by minute.
And our conversations are memorialized in the form of comments and instant messages, sometimes allowing random intruders to interfere with our complex discussions of the latest events. “Who is that person again?” Not an uncommon question when chatting with a “friend” online.
As these Internet devices are increasingly used for “private” communications, the question arises, “Can my electronic communications be used as evidence in court against me?” In general, the answer to this question is “yes” – this information can be used, subject to various limitations, during what is known as the experimental discovery process. What follows is a discussion of the basic applications of discovery on electronic information.
What is the “discovery process” in general?
Generally, evidence collected during the pre-trial phase of a lawsuit is known as discovery. During the discovery phase, each party is allowed to request documents and other items from the other side. According to the Federal Rules of Civil Procedure (FRCP), these documents and items are entered into the Register to be accepted as evidence. If one party is unwilling to submit documents for discovery, the other party may compel it to turn over evidence using discovery devices such as a subpoena.
The objects produced during discovery are usually documents and records kept by a person or company. Some items are not accepted as evidence. Examples of items that may not be accessed during discovery are those that are protected by attorney-client privilege, or items that have been unlawfully seized under an order.
What is “electronic discovery”?
In legal parlance, electronic discovery or “electronic discovery” refers to the discovery of information stored electronically. Electronically Stored Information, or “ESI” is an actual legal term adopted by the Federal Rules of Civil Procedure in 2006. ESI refers to information that is created, stored, and used in digital form, and requires the use of a computer for access. This information may take the form of digitally stored documents, e-mail messages, website addresses, and photographs. ESI is governed by the fundamental principles that govern the discovery phase. Once accepted as evidence, the ESI becomes an “electronic proof”.
However, because ESI is a relatively recent phenomenon (legally speaking), and due to its unique nature, there are many rules and laws that are unique to electronic discovery. Electronic discovery is often more demanding than traditional discovery, both in time and financial terms, due to the huge amount of information that can be stored on a computer.
What are the laws governing electronic discovery?
Federal Rules of Civil Procedure (FRCP)
As mentioned, the primary rules governing electronic discovery are the Federal Rules of Civil Procedure (FRCP). Specifically, Rule 16 was amended in 2006 to include ESI. The FRCP’s largest contribution to the discussion of electronic discovery is the term ESI.
US Constitution: Fourth Amendment search and seizure rules apply
Under the US Constitution, information stored electronically is subject to the same Fourth Amendment protections that guide search and seizure. Some of these Fourth Amendment inquiries include whether or not a person has a private interest in the property, and whether the police have obtained a valid search warrant in a property seizure. As we will see, in the field of electronic discovery, obtaining a valid search warrant is a major topic of discussion.
The Electronic Communications Privacy Act of 1986 (EPCA)
Born in the old school, the Wiretapping Act is one of the major legislative acts affecting electronic discovery. This federal law prohibits third parties from intercepting and using electronic communications without proper authorization. The term “third parties” applies to both government entities and private citizens. Appropriate authorization is under scrutiny, as many websites often contain questionable disclosure agreements. Communications that are either in storage or in transit are protected by law.
While the EPCA secures a good amount of privacy for the electronics user, it has been the target of a lot of criticism. For example, the law did not initially protect emails as they passed through. However, later cases ruled that this would defeat the entire purpose of the law, because emails are transient at least once in their existence. Emails are now protected both in storage and in transit.
Another criticism of the law is that it is not so difficult for government agencies to find ways to get around the “appropriate authorization” clause. All the agent needed to say was that the information was relevant to national security issues, i.e. counter-terrorism. Therefore, it is relatively easy to obtain a favorable order if the customer can justify the seizure of the ESI based on anti-terrorist theories. Also, unexplained seizures can be easily justified in such a theory. Many counterterrorism concerns became more complex with the passage of the 2001 Patriot Act, which gave government agents more access to ESI.
Popular ESI Categories to Find
Courts have ruled that all forms of ESI are discoverable. As stated, in order to obtain an ESI in discovery, a government representative or private individual must remain bound by discovery rules and search and seizure requirements. Here are some notes to keep in mind regarding the different forms of ESI:
email
Under the EPCA, email messages are protected from inappropriate disclosure by third parties either in storage or in transit. Federal rules in 2006 specifically named emails ESI, so they can be detected as long as appropriate procedures are followed. Two key points in email discovery are the temporary nature of email messages, and the level of privacy required in a search warrant or discovery request.
In the 2003 case, Zubulake v. UBS Warburg 217 FRD 309 (SDNY 2003), a great deal of effort was expended during the case to attempt to prove the existence of certain emails. In this case, the requested emails were never found, their destruction was not proven, and the court most likely ruled their existence. UBS has been severely penalized for not keeping information that might be vulnerable to discovery. The case shows how important it is to be in time in ESI production, as it is subject to erasure or deletion.
In another 2003 issue, Theofel v. emails are produced). This case shows that when an ESI is detected, the attorney must be very specific about which emails are requested. Courts should be able to identify emails relevant to their opinions; If they are unable to do so, the discovery request will be rejected.
Text messages, instant messages, and chats
Text messages, instant messages (IM), and chats are all ESI and are treated like emails for discovery purposes. So it is discoverable. Many text and instant messaging users believe that because their messages are executed on a mobile phone, their communications are deleted as soon as they are sent. However, most service providers keep a log of texts and instant messages anywhere from one to three months after they are sent. Also, after the Zubulake case, companies have become more wary of clearing messages from their database, especially if the message is “discoverable” in a pending case.
Text messages and the like can also cause timing issues, as they tend to be deleted from the database more quickly than emails. Also, most texts do not have a title like emails, so it can be cumbersome to sift through relevant information. However, it is still detectable.
Social Networking Sites
Information posted on sites like MySpace or Facebook is definitely ESI and discoverable. This means that anything the profile owner posts and incriminates against them in court can be used as electronic evidence.
Lawyers now regularly search social networking sites like MySpace and Facebook to gather information that may be relevant to their cases. This may include identifying witnesses, or collecting statements that may add weight of testimony to their case. Also, photos posted on the Internet can be used in various ways to prove the case. So profile owners should be careful not to release any information that could be used against them in court.
So far there have been no major legal cases for companies that have relied heavily on the production of discovery information from social networks such as Facebook or Twitter. A recent Canadian case, the Leduc v. Roman 2009 CanLII 6838 (ON SC), that information posted on websites such as Facebook must be disclosed upon request even if a person has blocked public access to their profile. It probably won’t be long before we see some major US cases tackle the production of evidence from social networking sites.
Most of the legal issues involving social networking and privacy have been in the opposite direction: the website intrudes on people’s privacy through invasive advertising. Perhaps the reluctance to share such information in litigation is that these sites are too new to the scene. Also, most companies agree that e-discovery in social network settings can be a potential nightmare. As with text, there are usually not addresses in much of the information published, not to mention the different applications and different features of these sites. Finally, most lawyers prefer to rely on traditional forms of evidence such as witness testimony, before relying on information from social media.
Recently, the Philadelphia State Bar Association published an opinion on lawyers using third parties to obtain information from social networks. The opinion stated that a lawyer should not use a third party in order to gain access to a person’s profile, for example, by asking another person to submit a friend request in order to remain anonymous. Although information on social networking sites can be discovered, lawyers and government officials must adhere to the rules of ethics and professional conduct.
A Final Note: Creative Advocacy and E-Discovery
Finally, remember that it is not always the content of electronically stored information that can be criminal. ESI can be used in many creative ways. The information can be used to prove a wanted element of the crime, such as a person’s mental state, or a person’s location in a particular place. For example, if the suspect’s excuse could be questioned if the computer history showed that he was active on the Internet in a different location. Creative lawyering means that the lawyer will use any information to prove his case, and may do so in ways not commonly imagined.
Therefore, it is in your best interest to be aware that electronic information can be used as evidence. It is clearly unwise to publish incriminating evidence, but keep in mind that the information can be used in a variety of ways. Even seemingly harmless conversations can be used to prove guilt in a court of law. And the data others post on a user’s profile is also fair game. It’s almost impossible not to get involved with ESI one way or the other, but a little common sense can go a long way.